OF JUDGMENT: 02/01/2018
LAFAYETTE COUNTY CIRCUIT COURT HON. JOHN ANDREW GREGORY,
ATTORNEY FOR APPELLANT: WALTER ALAN DAVIS
ATTORNEYS FOR APPELLEE: ARTHUR F. JERNIGAN JR. WILLIAM M.
VINES CORY T. WILSON
On November 21, 2017, Sun South LLC filed a Mississippi Rule
of Civil Procedure 60(b)(4) motion asking the Lafayette
County Circuit Court to set aside the circuit court's
July 2012 default judgment against Sun South in favor of
Bayou Vista LLC in the amount of $658, 842.13, plus interest
and attorneys' fees. The circuit court denied Sun
South's motion. On appeal, Sun South argues that the July
2012 default judgment was void for lack of personal
jurisdiction over Sun South due to insufficient service of
process on the part of Bayou Vista.
Sun South made no formal or informal appearance in the
litigation to file an answer or defend the merits of the case
until its Rule 60(b)(4) motion, which has no time limitation
for void judgments. We therefore find the default judgment is
void for insufficient service of process. Accordingly, we
reverse and render the circuit court's default judgment.
Sun South is a limited-liability company comprised of two
members and managing agents, Michael Halford and Ted Smith.
On June 9, 2009, Sun South executed a promissory note in
which it agreed to pay $690, 289.25 to Bayou Vista. On April
5, 2012, Bayou Vista filed a complaint with the circuit court
to collect the principal amount owed on the promissory note,
plus interest and attorney's fees, and named only Sun
South as a defendant. The complaint stated that Sun South
could be served with process through Smith, its registered
agent, at Smith's address in Oxford, Mississippi.
Bayou Vista attempted service of process first by mailing a
copy of the summons and complaint to Smith at his address in
Oxford. Bayou Vista then hired a process server who delivered
a copy of the summons and complaint to Halford's wife,
Elizabeth Halford, at their address in Oxford. After Sun
South filed no response to the complaint, Bayou Vista filed a
motion for summary judgment on May 16, 2012, asserting that
the promissory note was valid and remained unpaid. Bayou
Vista asked the circuit court to issue a default judgment
against Sun South. Bayou Vista attached to the
summary-judgment motion an affidavit signed by Smith. In the
affidavit, Smith testified that he and Halford had been the
sole members of Sun South since its inception and that
"to his knowledge," no payment had been made on the
2009 promissory note owed to Bayou Vista. Smith's
affidavit did not state that he was testifying on behalf of
Sun South, nor did he address the lawsuit or service of
process in any way. Smith signed the affidavit, but it not
indicate a specific date on which it was executed. On July
20, 2012, the circuit court entered a final judgment of
default against Sun South in the amount of $658, 842.13, plus
interest and $15, 000 in attorney's fees. The circuit
court found that Sun South had not "answered or
otherwise appeared" in the action.
Following the default judgment, the circuit court entered a
November 30, 2012 order to issue writs of execution against
Sun South's property. The circuit clerk issued writs of
execution upon four pieces of property that Sun South owned.
On October 27, 2015, the circuit court entered an order
directing that the sale of the four levied properties be
advertised for sale and auction pursuant to Mississippi law.
The circuit court then ordered a writ of execution to be
issued and served upon Sun South, followed by a notice of
public sale about Sun South's levied property. The writs
of execution were issued on November 18, 2015, and personally
served upon Halford on November 19, 2015, marking the first
time that Sun South officially received notice of any default
judgment levied against it. On December 1, 2015, Sun
South's real property was sold, and the circuit court
confirmed the sale by an order entered on December 2, 2015.
On December 15, 2015, Sun South's personal property was
sold, and the circuit court confirmed the sale by an order
entered on December 16, 2015. Neither member of Sun South was
present at the sale of the real or personal property, and no
one took action to prevent the execution of the writs or the
sale of Sun South's property.
On November 17, 2015, Bayou Vista filed a motion for a
judgment-debtor examination. The circuit court granted the
motion on November 20, 2015, and ordered the examination to
take place on December 11, 2015, at 10 a.m. Again, the record
reflects no appearance by either member of Sun South at the
judgment-debtor examination on December 11, 2015.
On November 21, 2017, Sun South filed a motion for relief
from judgment, pursuant to Rule 60(b)(4), and argued that
Bayou Vista failed to properly serve Sun South, which voided
the judgment for lack of personal jurisdiction. The circuit
court heard the motion on January 10, 2018, and ultimately
denied Sun South's motion after finding that Smith's